Clavis v. Ashcroft

• Decision Date: 02 June 2003
• Docket Number: No. 03-CV-1571 ARR.,03-CV-1571 ARR.
• Citation: 281 F.Supp.2d 490
• Parties: Oswald O'Brian CLAVIS, Petitioner, v. John ASHCROFT, et al., Respondent.
• Court: U.S. District Court — Eastern District of New York

281 F.Supp.2d 490

Oswald O'Brian CLAVIS, Petitioner, v. John ASHCROFT, et al., Respondent.

No. 03-CV-1571 ARR.

United States District Court, E.D. New York.

June 2, 2003.

Oswald O'Brian Clavis, Oakdale, LA, Petitioner Pro Se.

Kristen Chapman, United States Attorney's Office, Eastern District of New York, Brooklyn, NY, for Respondent.

OPINION AND ORDER

ROSS, District Judge.

Petitioner pro se Oswald O'Brian Clavis filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on March 20, 2003. Currently in custody in the Immigration and Naturalization's (INS) detention facility in Oakdale, Louisiana, petitioner maintains that his continued detention without bond constitutes an unconstitutional deprivation of his right to substantive due process. Petitioner also argues that INS's refusal to allow him to apply for a waiver of deportation pursuant to former Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., since repealed by § 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, sec. 803, 110 Stat. at 3009-3597 (1996), is unconstitutional. By order dated April 21, 2003, the court stayed petitioner's deportation. For the reasons given below, the stay is vacated and the petition is denied.

BACKGROUND

Petitioner, a citizen of Guyana, has lived in the United States since 1980 as a lawful permanent resident. In 1989, he was convicted after a trial in the Northern District of Georgia of a number of narcotics offenses, including conspiracy to possess with intent to distribute more than fifty grams of cocaine base and maintaining a place within 1000 feet of an elementary school for the purpose of manufacturing, distributing, and using cocaine. Resp. Decl. Ex. 2. Petitioner was sentenced to concurrent terms of 188 and 120 months. Id. The conviction was upheld in part and reversed in part by the Eleventh Circuit on March 31, 1992. Id.

As a result of his convictions, on February 22, 1990, the INS¹ served petitioner with an order to show cause charging him as deportable as an alien convicted of an offense relating to a controlled substance and as an alien convicted of an aggravated felony drug trafficking offense. Resp. Decl. Ex. 3. Deportation proceedings began on June 18, 1991, but they were administratively closed at the request of the INS, apparently due to the fact that petitioner had sought appellate review of his criminal conviction. See Transcript of August 15, 2002, Hearing at 35, attached as Resp. Decl. Ex. 4. Proceedings recommenced on May 30, 2002, after petitioner had finished his criminal sentence and been released to INS custody. Petitioner sought a waiver of deportation pursuant to Section 212(c) of the INA on the basis that his deportation would cause extraordinary hardship to his family, the members of which are allegedly American citizens living in the United States. Pet. ¶ 7.² The immigration judge refused to permit petitioner to apply for a waiver of deportation, ruling (1) that IIRIRA's repeal of Section 212(c) applied to his case and (2) that even under the pre-IIRIRA regime he was not eligible to seek such relief. Resp. Decl. Ex. 4. The Board of Immigration Appeals upheld the immigration judge's decision on February 26, 2003. Id. at Ex. 5. This petition followed.

DISCUSSION

Petitioner raises three claims in support of his application for a writ of habeas corpus. He argues that his continued detention without bond violates his substantive due process rights. Second and third, he contends that the immigration judge's refusal to permit him to apply for Section 212(c) relief violates his equal protection and procedural due process rights.

Venue

The INS contends that venue is improper in the Eastern District of New York and seeks to have petitioner's case transferred to the Western District of Louisiana, the Northern District of Georgia, or the District of New Jersey. Because 28 U.S.C. § 2241 has no venue provisions, traditional venue considerations apply. See Smart v. Goord, 21 F.Supp.2d 309, 313 (S.D.N.Y.1998) (noting that habeas petitions brought pursuant to Section 2241 are considered civil actions for the purposes of 28 U.S.C. § 1404). These include where the material events took place, where witnesses and records pertinent to the claim may be found, the convenience of the forum for both parties, and the court's familiarity with applicable laws. Henderson v. INS, 157 F.3d 106, 128 n. 25 (2d Cir.1998). The decision whether or not to transfer venue is committed to the broad discretion of the district court. See 28 U.S.C. § 1404(a) ("For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action ....") (emphasis added); Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (observing that venue transfers are within the discretion of the district court).

Petitioner claims that his family resides in Brooklyn, New York, that he considers Brooklyn his residence, and therefore that the court should find that venue is appropriate in the Eastern District of New York. The INS argues that no records suggest that petitioner has any ties to Brooklyn and insinuates that he is fabricating his claim of familial residence. In light of the disposition of this petition, which requires no hearing and therefore no personal appearance by petitioner, the court finds the Eastern District a suitable venue and refuses to exercise its discretion to transfer the case.

Continued Detention

Petitioner argues that his mandatory detention pursuant to Section 236 of the INA, 8 U.S.C. § 1226, constitutes an unconstitutional deprivation of liberty. Because the court entered a temporary stay of deportation, up to this point petitioner has remained in INS custody pursuant to Section 236. See Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir.2003) (discussing INA § 241(a) and observing that a removal period beings on the date a court issues its final order and removes its stay of deportation). However, by this decision the stay is lifted, and from here onwards petitioner is held not pursuant to Section 236 but pursuant to Section 241, 8 U.S.C. § 1231(a)(6). See id. His Section 236 claim is now moot. Id. at 147; see also Lawrence v. INS, No. 00 Civ. 2154, 2001 WL 818141, at *6-7 (S.D.N.Y. July 20, 2001). Detention pursuant to Section 241 for the six months following the entry of the final order of removal — i.e., the removal of the stay — is presumptively constitutional. See Wang, 320 F.3d at 146; see also Zadvydas v. Davis, 533 U.S. 678, 682, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

Assuming arguendo that petitioner continues to be detained pursuant to Section 236, his due process claim is meritless. The Supreme Court recently ruled that "[d]etention during removal proceedings is a constitutionally permissible part of that process" and denied that mandatory detention without an individualized determination of an alien's flight risk does not violate Fifth Amendment guarantees of substantive due process. Demore v. Kim, ___ U.S. ___, ___-___, 123 S.Ct. 1708, 1721-22, 155 L.Ed.2d 724 (2003).

Section 212(c)

The petition advances an argument in generalized, vague terms that the IJ's refusal to permit petitioner to apply for Section 212(c) relief violates his equal protection and due process rights. In his reply to respondents' opposition to the petition, he clarifies his argument. Because the INS began deportation proceedings against him prior to IIRIRA's enactment, he contends, the 1996 amendment to the INA removing Section 212(c) should not apply to his case.

IIRIRA sets forth "transitional" rules that apply to cases where the INS began removal proceedings prior to April 1, 1997, but entered a final order of removal after October 31, 1996. Sol v. INS, 274 F.3d 648, 651 (2d Cir.2001). Under the transitional rules, a petitioner may apply for Section 212(c) relief. See United States v. Frias-Gomez, 262 F.Supp.2d 11, 14-15 (E.D.N.Y.2003). Whether IIRIRA's transitional rules should apply to petitioner's case hinges upon when his deportation proceedings began. The INS filed its order to show cause on February 22, 1990, and the first round of hearings started on June 18, 1991. They were administratively closed shortly thereafter, and the INS did not start proceedings anew until May 30, 2002. If either of the earlier dates represents the commencement of proceedings, then the transitional rules govern. If not, IIRIRA's repeal of Section 212 applies.

Although the Second Circuit has yet to decide the issue of when deportation proceedings formally begin, several courts in the Eastern District of New York have held that "deportation proceedings are commenced when an Order to Show Cause or other charging document is filed." Id. at 15; see also Pena-Rosario et al. v. Reno, 83 F.Supp.2d 349, 360 (E.D.N.Y. 2000). This rule follows the regulations applicable to the INA. 8 C.F.R § 1003.14 (2003) ("[P]roceedings before an immigration commence ... when a charging document is filed."); 8 C.F.R. § 1003.13 (2003) ("Charging document means the written instrument which initiates a proceeding before an Immigration Judge. For proceedings initiated prior to April 1, 1997, these documents include an Order to Show Cause ...."). The First and Eleventh Circuits have adopted this rule as well. Alanis-Bustamante v. Reno, 201 F.3d 1303, 1309 (11th Cir.2000); Wallace v. Reno, 194 F.3d 279, 287 (1st Cir.1999). As the Eleventh Circuit explains, "[t]o conclude otherwise not only risks undermining the reasonable expectations of an alien, it also ignores the INS' power over an alien once it issues an order to show cause." Alanis-Bustamante, 201 F.3d at 1309-10. There is no suggestion that the order to show cause filed against petitioner in 1990 was ever vacated or revoked. Even though his proceedings were administratively closed in 1991, petitioner remained under the authority of...